Friday, May 24, 2013

Sixth Circuit Court of Appeals update,,,,,

Speaking of the Sixth Circuit, it’s been quite a busy month in those hallowed halls and we wanted pass on mention of four cases especially.

Another case out of the Sixth Circuit being petitioned to the Supreme Court is White v. Woodall, Case 12-794, questioning “(1) Whether the Sixth Circuit violated 28 U.S.C. 2254(d)(1) by granting habeas relief on the trial court's failure to provide a no adverse inference instruction even though the Supreme Court has not ‘clearly established’ that such an instruction is required in a capital penalty phase when a non-testifying defendant has pled guilty to the crimes and aggravating circumstances; and (2) whether the Sixth Circuit violated the harmless error standard in Brecht v. Abrahamson in ruling that the absence of a no adverse interference instruction was not harmless in spite of overwhelming evidence of guilt and in the face of a guilty pleas to the crimes and aggravators.” (Woodall's Petition for Certiorari)

Robert Woodall had pled guilty to capital murder, capital kidnapping, and first degree rape in the death of a 16-year old girl in 1997. Court records showed that at the penalty trial, Woodall cross-examined each of Kentucky’s eleven witnesses and called fourteen of his own witnesses who testified about Woodall’s life and upbringing. Woodall did not testify, but had then requested that the trial judge instruct the jury that it should not draw any adverse inference from his decision not to. The trial judge concluded that Woodall was not entitled to the requested instruction, determining that, by entering a guilty plea, he had waived his right to be free from self-incrimination. The trial court adopted the recommendations of the jury and sentenced Woodall to death on the murder conviction and life imprisonment for the remaining convictions.
Woodall unsuccessfully appealed his sentence to the Kentucky Supreme Court and then filed a writ of habeas corpus in federal district court, which the district court granted because the trial court denied him his Fifth Amendment right against self-incrimination and made a constitutional error during jury selection. The Sixth Circuit affirmed the state’s appeal in July 2012, which is now what is being attempting to be brought before the Supreme Court.

Two sentencing cases were decided, the first, on May 6th. , seeing the Sixth Circuit affirm the ruling made by the District Court for Northern Ohio in Cleveland denying a motion for sentence reduction in U.S. v. Keith Thompson, case 12-4118 -- a case which centered around the federal sentencing guidelines.

In December 2005, Keith Thompson was charged in a five-count indictment, four of them being possession with the intent to sell/distribute crack cocaine on three separate occasions. The fifth count was a weapons under disability count. In April 2006, pursuant to a non-binding plea agreement, Thompson pleaded guilty to three counts of possessing crack cocaine with the intent to distribute, in exchange for the government’s dismissing the two remaining counts against him and agreeing it would not oppose his request for a “downward departure or variance [that] would result in a sentence of not less than 120 months.” The district court sentenced Thompson to 120 months of imprisonment with three years of supervised release, reasoning in part that “[he] have had a base offense level of 24 under U.S.S.G. § 2D1.1 (the “crack cocaine guidelines”). However, because he was deemed a career offender, his actual base offense level was 32 under U.S.S.G. § 4B1.1 (the “career offender guidelines”), and a downward departure to 29 was granted to reflect Thompson’s acceptance of responsibility. The court found that the guidelines sentencing range was 151-188 months because Thompson’s criminal history category was VI. After considering the factors contained in 18 U.S.C. § 3553(a), the judge ultimately sentenced Thompson to 120 months of imprisonment. Such sentence was the same sentence contemplated by the plea agreement. Thompson challenged the sentence but lost.

An appeal and motion for reconsideration were both denied by the District Court, after which he first filed an appeal and then a joint motion to dismiss & remand with the Sixth Circuit, arguing that two recent decisions—Freeman v. United States, 131 S.Ct. 2685 (2011), and United States v. Jackson, 678 F.3d 442 (6th Cir. 2012)—compelled the court to hold that his sentence was eligible for reduction because his sentence was “based on” the crack cocaine guidelines. The District Court, however, disagreed, holding that the crack cocaine guidelines were not relevant to Thompson’s sentence calculation, but that his sentence had been based on his status as a career offender and also noting that it considered Thompson “to be a risk to the community and would not exercise its discretion to lower his sentence even if a reduction were allowable under the new sentencing guidelines.” On appeal once again, the Sixth Circuit upholding that view.

The University of Pittsburgh’s Jurist Paperchase, detailed the second case of note here, USA v. Cornelius Blewett, 12-5226 on May 17, 2013 from Western District of Kentucky at Bowling Green --- brought by two incarcerated defendants seeking retroactive relief from racially discriminatory, 10-year mandatory minimum sentences imposed on them in 2005.

Jurist wrote, the ruling “expands upon the June 2012 US Supreme Court ruling in Dorsey v. United States, 11-5683, to expand the Fair Sentencing Act of 2010 by applying it to defendants were sentenced after the act was in place, even if they were arrested before the act took effect. In Dorsey, Justice Stephen Breyer concluded: ‘[T]he FSA did not include any language to make it apply retroactively, but it not did explicitly deny such retroactivity either.’ In 2007, the U.S. Sentencing Commission voted unanimously to give retroactive effect to an earlier sentencing guideline amendment that reduced crack cocaine penalties, and a study released by the US Sentencing Commission (USSC) in April 2008 reported that more than 3,000 prison inmates convicted of crack cocaine offenses had their sentences reduced under an amendment to the Federal Sentencing Guidelines.

A final , perhaps more noteworthy, instance last week is the Sixth Circuit’s siding with the Department of Immigration’s challenging of a family's asylum on the grounds that Germany's ban on home-schooling did not constitute persecution and thus could not be used as a basis for political asylum in the United States.

In this case, Uwe Romeike v. Eric Holder, Jr., 12-3641, husband and wife, who now have six children, ABCNews reported, came to the United States in 2008 after the German government threatened them with legal action for “home-schooling” their children, which is banned in Germany, and were initially granted asylum by a US judge who believed Germany had restricted their religious freedom.

“U.S. law,” according to the article, “says that individuals can qualify for asylum if they can prove they are being persecuted because of their religion or because they are members of a particular ‘social group,’ but the family's asylum was challenged on the grounds that Germany's ban on home-schooling did not constitute persecution and thus could not be used as a basis for political asylum in the United States.

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